GRIZZEL v. WILKES COUNTY, NORTH CAROLINA

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

NYAMBER GRIZZEL, )

)

Plaintiff, )

)

v. ) 1:23CV445

)

WILKES COUNTY, NORTH CAROLINA, )

et al., )

)

Defendants. )

MEMORANDUM OPINION, RECOMMENDATION, AND ORDER

OF UNITED STATES MAGISTRATE JUDGE

This case comes before the undersigned United States

Magistrate Judge on Plaintiff’s Application to Proceed in District

Court Without Prepaying Fees or Costs (Docket Entry 1) (the

“Application”), filed in conjunction with her pro se Complaint

(Docket Entry 2). For the reasons that follow, the undersigned

will grant the Application for the limited purpose of recommending

dismissal of this action.

RELEVANT STANDARDS

“The federal in forma pauperis statute, first enacted in 1892

[and now codified at 28 U.S.C. § 1915], is intended to guarantee

that no citizen shall be denied access to the courts solely because

[her] poverty makes it impossible for [her] to pay or secure the

costs.” Nasim v. Warden, Md. House of Corr., 64 F.3d 951, 953 (4th

Cir. 1995) (en banc) (internal quotation marks omitted).

“Dispensing with filing fees, however, [is] not without its

problems. . . . In particular, litigants suing in forma pauperis

d[o] not need to balance the prospects of successfully obtaining

relief against the administrative costs of bringing suit.” Nagy v.

Federal Med. Ctr. Butner, 376 F.3d 252, 255 (4th Cir. 2004). To

address this concern, the in forma pauperis statute provides that

“the [C]ourt shall dismiss the case at any time if the [C]ourt

determines that . . . the action . . . (ii) fails to state a claim

on which relief may be granted[] or (iii) seeks monetary relief

against a defendant who is immune from such relief.” 28 U.S.C.

§ 1915(e)(2)(B).

As to the first of these grounds, a plaintiff “fails to state

a claim on which relief may be granted,” 28 U.S.C.

§ 1915(e)(2)(B)(ii), when the complaint does not “contain

sufficient factual matter, accepted as true, to ‘state a claim to

relief that is plausible on its face,’” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (emphasis added) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). “Where a complaint pleads

facts that are merely consistent with a defendant’s liability, it

stops short of the line between possibility and plausibility of

entitlement to relief.” Id. (internal quotation marks omitted).

This standard “demands more than an unadorned,

the-defendant-unlawfully-harmed-me accusation.” Id. In other

words, “the tenet that a court must accept as true all of the

allegations contained in a complaint is inapplicable to legal

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conclusions. Threadbare recitals of the elements of a cause of

action, supported by mere conclusory statements, do not suffice.”

Additionally, under 28 U.S.C. § 1915(e) (2) (B), constitutional

and common-law doctrines that immunize government entities and/or

personnel from liability for damages also constitute grounds for

dismissal. See, e.g., Pennhurst State Sch. & Hosp. v. Halderman,

465 U.S. 89 (1984) (discussing sovereign immunity of states and

state officials under the Eleventh Amendment); Pierson v. Ray, 386

U.S. 547 (1967) (describing interrelationship of 42 U.S.C. § 1983

and common-law immunity doctrines, including judicial immunity);

cf. Allen v. Burke, 690 F.2d 376, 379 (4th Cir. 1982) (noting that,

even where “damages are theoretically available under [certain]

statutes . . ., in some cases, immunity doctrines and special

' Although “[a] document filed pro se is to be liberally

construed and a pro se complaint, however inartfully pleaded, must

be held to less stringent standards than formal pleadings drafted

by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal

quotation marks and citation omitted), the United States Court of

Appeals for the Fourth Circuit has “not read Erickson to undermine

Twombly’s requirement that a pleading contain more than labels and

conclusions,” Giarratano v. Johnson, 521 F.3d 298, 304 n.5 (4th

Cir. 2008) (internal quotation marks omitted) (dismissing pro se

complaint); accord Atherton v. District of Columbia Off. of the

Mayor, 567 F.3d 672, 681-82 (D.C. Cir. 2009) (“A pro se complaint

- . . ‘must be held to less stringent standards than formal

pleadings drafted by lawyers.’ But even a pro se complainant must

plead ‘factual matter’ that permits the court to infer ‘more than

the mere possibility of misconduct.’” (first quoting Erickson, 551

U.S. at 94; then Igbal, 556 U.S. at 679)).

defenses, available only to public officials, preclude or severely

limit the damage remedy” (internal quotation marks omitted)).

BACKGROUND

Asserting claims under “42 U.S.C. § 1983 & 1985”2 for alleged

violations of her rights (Docket Entry 2 at 4),3 Plaintiff

initiated this action against five defendants: (1) Wilkes County,

(2) Deputy C. Greene (“Deputy Greene”), (3) Rebecca Jordan

(“Defendant Jordan”), (4) Judge Donna Shumate (“Judge Shumate”),

and (5) the State Bureau of Investigation (individually, the “SBI,”

and collectively, the “Defendants”) (id. at 1-3). According to

Plaintiff’s Complaint:

In 2021, officers with the Wilkes County Sheriff’s Office

arrested Plaintiff on assault charges. (Id. at 7.) Although

Plaintiff had been “assaulted by [her] ex,” C.R.S., the police

wrongfully arrested and charged her in this incident, causing her

to lose custody of her son. (Id.) Additionally, “[t]he Wilkes

2 Section 1985 provides, as relevant here, “[i]f two or more

persons in any State or Territory conspire . . ., for the purpose

of depriving, . . . any person or class of persons of equal

protection of the laws, or of equal privileges and immunities under

the laws; . . . the party so injured or deprived may have an action

for the recovery of damages occasioned by such injury or

deprivation, against any one or more of the conspirators.” 42

U.S.C. § 1985(3). To the extent the Complaint raises separate

Section 1985 claims, any claims that Defendants conspired against

Plaintiff fail for the same reasons as the Section 1983 claims

against Defendants.

3 Docket Entry page citations utilize the CM/ECF footer’s

pagination.

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County Child Support enforcement agency lied and said [she] had to

pay” child support. (Id. at 8-9.) “[Defendant] Jordan was the

caseworker in Wilkes County,” and there “[wa]s a conflict of

interest between [Defendant Jordan] and [Plaintiff’s] exe[’]s

mom.” (Id. at 9.) The girlfriend of Plaintiff’s ex (C.R.S.) knows

Judge Shumate, “the one who signed the order.” (Id.) Further,

Plaintiff “think[s]” that another ex-boyfriend, N.A., “works for

the SBI and . . . hacked all [of her] devices and [her] wifi

network.” (Id.) Finally, the Complaint requests compensation of

“20 billion” dollars, “dismiss[al] and expunge[ment]” of

Plaintiff’s assault charge, and to “quit being harassed [by] the

court.” (Id. at 6.)

DISCUSSION

As an initial matter, to state a claim for relief under

Section 1983, Plaintiff must assert “that [she was] deprived of a

right secured by the Constitution or laws of the United States, and

that the alleged deprivation was committed under color of state

law.” American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49-50

(1999); see also Jones v. Chandrasuwan, 820 F.3d 685, 691 (4th Cir.

2016) (“Section 1983 is not itself a source of substantive rights,

but rather provides a method for vindicating federal constitutional

and statutory rights.”).

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I. Wilkes County

To begin, the Complaint names Wilkes County as a defendant

(Docket Entry 2 at 2), but contains no allegations against Wilkes

County specifically (see id. at 1-11). Instead, the Complaint

contains various allegations against individuals and entities in

Wilkes County. (See id.) Although “Congress did intend

municipalities and other local government units to be included

among those persons to whom [Section] 1983 applies,” Monell v.

Department of Soc. Servs., 436 U.S. 658, 690 (1978) (emphasis

omitted), to state a viable Section 1983 claim against Wilkes

County (either directly or via an official capacity claim against

it/employee(s)), “it must be shown that the actions of [persons

employed by Wilkes County] were unconstitutional and were taken

pursuant to a custom or policy of [Wilkes County],” Giancola v.

State of W. Va. Dep’t of Pub. Safety, 830 F.2d 547, 550 (4th Cir.

1987) (observing that official capacity suits actually target

employing entity) (citing Monell, 436 U.S. at 690-92). See Board

of Cnty. Comm’rs of Bryan Cnty. v. Brown, 520 U.S. 397, 403 (1997)

(“[The Supreme Court] ha[s] required a plaintiff seeking to impose

liability on a [local governmental body] under § 1983 to identify

a [local governmental] ‘policy’ or ‘custom’ that caused the

plaintiff’s injury.”). Importantly, “‘a municipality cannot be

held liable solely because it employs a tortfeasor or, in other

words, a municipality cannot be held liable under [Section] 1983 on

a respondeat superior theory.’” Avery v. Burke Cnty., 660 F.2d

111, 114 (4th Cir. 1981) (quoting Monell, 436 U.S. at 691).

Therefore, Section 1983 liability can only attach to Wilkes

County if “execution of [its] policy or custom, whether made by its

lawmakers or by those whose edicts or acts may fairly be said to

represent official policy, inflicts the injury.” Collins v. City

of Harker Heights, 503 U.S. 115, 121 (1992) (internal quotation

marks omitted). Accordingly, Plaintiff must show that a

“constitutional injury [wa]s proximately caused by a written policy

or ordinance, or by a widespread practice that is ‘so permanent and

well settled as to constitute a “custom or usage” with the force of

law./’” McFadyen v. Duke Univ., 786 F. Supp. 2d 887, 954 (M.D.N.C.

2011) (quoting City of St. Louis v. Praprotnik, 485 U.S. 112, 127

(1988)), rev’d in part on other grounds, 703 F.3d 636 (4th Cir.

2012). However, the Complaint does not allege that any policy or

custom of Wilkes County or its officials caused any of the

challenged events or otherwise harmed Plaintiff. (See Docket Entry

2 at 6-10.) Thus, Plaintiff fails to state a viable claim against

Wilkes County, necessitating dismissal of any such claims. See 28

U.S.C. § 1915(e) (2) (B) (11).

II. Deputy Greene

Beyond naming Deputy Greene as a defendant (Docket Entry 2 at

2), the Complaint does not mention Deputy Greene (see id. at 1-11).

Due to the lack of factual allegations involving Deputy Green, the

Complaint fails to establish a Section 1983 claim against Deputy

Greene. See American Mfrs., 526 U.S. at 49 (requiring allegations

of a “depriv[ation] of a right secured by the Constitution or laws

of the United States” to state a Section 1983 claim). Put another

way, the Complaint does not indicate in any meaningful way that

Deputy Greene engaged in any violation of Plaintiff’s rights as

required to state a plausible Section 1983 claim. See Iqbal, 556

U.S. at 679 (“While legal conclusions can provide the framework of

a complaint, they must be supported by factual allegations.”).*

Therefore, the Court should dismiss any claims against Deputy

Greene under 28 U.S.C. § 1915(e) (2) (B) (11).

III. Defendant Jordan

Next, as to Defendant Jordan, even liberally construed, the

Complaint’s conclusory assertion that Plaintiff “think[s] ...a

conflict of interest [exists] between [Defendant Jordan and

Plaintiff’s] exe[’]s mom” (Docket Entry 2 at 9) does not plausibly

establish that Defendant Jordan violated Plaintiff’s rights. The

Complaint does not further develop factual allegations against

“ To the extent the Complaint rests its theory of liability

against Deputy Greene on his position with the Wilkes County

Sheriff’s Office, such respondeat superior theories do not exist

under 1983. See id. at o77. “Instead, a successful individual

capacity claim must allege that the defendant was personally

involved in the deprivation of [Plaintiff]’s rights.” Bunting v.

Cooper, Civ. Action No. 5:17-CT-3098, 2017 WL 5639948, at *3

(E.D.N.C. May 23, 2017) (citing, inter alia, Iqbal, 556 U.S. at

676, and Monell, 436 U.S. at 691-92). The Complaint makes no such

assertions. (Docket Entry 2 at 6-10.)

Defendant Jordan, including any details regarding the asserted

“conflict of interest” or how it allegedly adversely impacted

Plaintiff. (Id. (stating in Complaint’s sole reference to

Defendant Jordan: “[Defendant] Jordan was the caseworker in Wilkes

County and I think their [sic] is a conflict of interest between

her [and] my exe[’]s mom (R[.] S[.])7”).) “As such, Plaintiff’s

allegations [against Defendant Jordan] do not rise above the level

of mere speculation.” Studivent v. Lankford, No. 1:10cv144, 2010

WL 1568451, at *2 (M.D.N.C. Apr. 16, 2010), recommendation adopted,

2012 WL 1205722 (M.D.N.C. Apr. 11, 2012). Therefore, the Court

should dismiss all claims against Defendant Jordan for failure to

state a claim. See 28 U.S.C. § 1915(e) (2) (B) (11).

IV. Judge Shumate

As for Plaintiff’s claim against Judge Shumate (see Docket

Entry 2 at 2), state and federal judges enjoy judicial immunity,

namely, “an immunity from suit, not just from ultimate assessment

of damages,” Mireles v. Waco, 502 U.S. 9, 11 (1991). “Judges

performing judicial acts within their jurisdiction are entitled to

absolute immunity from civil liability claims,” In re Mills, 287 F.

App’ x 273, 279 (4th Cir. 2008) (emphasis added), “even if such acts

were allegedly done either maliciously or corruptly,” King v.

Myers, 973 F.2d 354, 356 (4th Cir. 1992). See Mireles, 502 U.S. at

11.

To determine whether an action constitutes a “judicial act”

protected by judicial immunity, the Court must consider “whether

the function is one normally performed by a judge, and whether the

parties dealt with the judge in his or her judicial capacity.”

King, 973 F.2d at 357. A plaintiff can only overcome judicial

immunity when the allegations concern acts of a nonjudicial nature

or if the judge acted “in the complete absence of all

jurisdiction.” Darling v. Falls, 236 F. Supp. 3d 914, 927

(M.D.N.C. 2017) (citing Mireles, 502 U.S. at 11); see also Stump v.

Sparkman, 435 U.S. 349, 359-62 (1978) (holding that judicial

immunity applies even when judge’s “exercise of authority [was]

flawed by the commission of grave procedural errors” and that

“judicial act” encompasses any “function normally performed by a

judge”).

Plaintiff alleges that Judge Shumate violated her rights by

“sign[ing] the order.” (Docket Entry 2 at 9.)° Signing an order

constitutes a routine judicial action. See King, 973 F.2d at 357.

Nowhere does Plaintiff allege that Judge Shumate took any

° The Complaint does not specify the contents of the order at

issue. (See id. at 6-10.) The allegations regarding Judge Shumate

appear amid discussion of child custody and child support matters.

(See id.) This discussion includes references to multiple orders.

(See, e.g., id. at 8-9 (stating “they tricked me into signing an

order that said I was the father and I’m not sure if it is a

joke”), 9 (referencing “the wrong custody order”).} Regardless of

the context and/or content of the relevant order, Judge Shumate

enjoys judicial immunity because signing an order qualifies as a

routine judicial function. See King, 973 F.2d at 357.

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nonjudicial actions or that she acted outside her jurisdiction.

(Docket Entry 2 at 6-11.) Accordingly, Judge Shumate enjoys

absolute judicial immunity from Plaintiff’s claims. Therefore, the

Court should dismiss Plaintiff’s claims against Judge Shumate. See

28 U.S.C. § 1915 (e) (2) (B) (4131).

V. The SBI

Finally, Plaintiff asserts claims against the SBI. (Docket

Entry 2 at 3.) The SBI constitutes an arm of the State of North

Carolina. See Green v. North Carolina State Bureau □□

Investigation Crime Lab, No. 3:llcv69, 2011 WL 4074613, at *2

(W.D.N.C. Sept. 13, 2011) (“[T]he SBI is not a ‘person’ under

[Section] 1983. . . . For Eleventh Amendment purposes, the SBI is

considered an arm of the State of North Carolina.”) (citing Will v.

Michigan Dep’t of State Police, 491 U.S. 58, 70-71 (1989)). Asa

state agency, the SBI does not qualify “als a] ‘person[]’ under

§ 1983.” Will, 491 U.S. at 71. For that reason, Plaintiff fails

to state a claim against the SBI. Even setting aside this

deficiency, the Eleventh Amendment would limit any relief against

the SBI to a prospective injunction to remedy an ongoing violation

of federal law. See McBurney v. Cuccinelli, 616 F.3d 393, 399 (4th

Cir. 2010) (discussing “Eleventh Amendment immunity”). And

Plaintiff does not request any injunctive relief against the SBI.

(See Docket Entry 2 at 6.) Therefore, the Court should dismiss all

claims against the SBI under 28 U.S.C. § 1915(e) (2) (B) (ii) & (i411).

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CONCLUSION

This action fails to state a claim and/or runs afoul of

immunity doctrines.

IT IS THEREFORE ORDERED that Plaintiff’s Application (Docket

Entry 1) is GRANTED FOR THE LIMITED PURPOSE OF ALLOWING THE COURT

TO CONSIDER A RECOMMENDATION OF DISMISSAL.

IT IS RECOMMENDED that this action be dismissed pursuant to 28

U.S.C. § 1915(e)(2)(B) for failing to state a claim and seeking

relief from immune defendants.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

September 22, 2023

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